United States District Court, M.D. Pennsylvania
October 18, 2005.
JOANN and MICHAEL COOLBAUGH, Plaintiffs,
STEPHANIE and MARION INSABELLA, Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court for disposition is Plaintiffs' Appeal of the
Clerk of Courts' Decision on Plaintiff's Amended Bill of Costs.
This matter has been briefed fully and is ripe for disposition.
For the reasons that follow, we will deny the appeal.
On November 17, 2004, following a civil jury trial, this court
entered judgment for plaintiffs and against defendants in the
amount of $7,500.00. Plaintiffs filed a bill of costs seeking to
be reimbursed by the defendants for Clerk's fees, deposition
costs, witness fees/mileage and copying.
The Clerk taxed costs in favor of plaintiffs but only in the
amount of $949.87, more than a thousand dollars less than
plaintiffs had sought. The Clerk refused to award several costs
claimed by plaintiffs. First, the Clerk rejected plaintiff's
claim of $580.00 for videotaped deposition of a witness because
according to Local Rule 54.4(3), such a cost cannot be taxed
without prior court approval. Next, the Clerk reduced a $98.86
claim for a witness's travel expenses to $75.00, since witness
travel may be taxed only up to a 200-mile round-trip maximum. Finally, she stripped nearly all
taxation of plaintiffs' copying costs due to insufficient
identification of documents and their purposes. The only
exception was $172.27, which the Clerk taxed for photocopying
plaintiffs' medical records.
Plaintiffs' Appeal seeks an additional $1,056.88, which would
bring the total taxation of costs to $2,006.55. Plaintiffs assert
that the Clerk of Courts erred in excluding the following from
the taxation of costs: 1) $580.00 for videotaping the deposition
of a witness, Dr. Horchos; 2) $425.80 for making 2129 copies of
documents filed with the court and for trial; and 3) $50.88 for
enlargement of a trial exhibit. We will address these issues in
"Except when express provision therefor is made either in a
statute of the United States or in these rules, costs other than
attorneys' fees shall be allowed as of course to the prevailing
party unless the court otherwise directs. . . ." FED. R. CIV. P.
54(d)(1). In hearing an appeal of an award of costs, we employ a
de novo standard of review over an "essentially ministerial
task" of the Clerk of Courts. In re Paoli R.R. Yard PCB,
221 F.3d 449 (3d Cir. 2000). The party appealing the Clerk's decision
bears the burden of "persuading the court that it was improper."
10 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL RULES OF
PRACTICE AND PROCEDURE § 2679 (3d ed. 2005).
1. Videotape deposition
First, the plaintiffs allege that they are entitled to be
reimbursed by the defendants for the cost of videotaping the
deposition of Dr. Horchos for use at trial. They argue such
taxation is acceptable if the videotaping is necessary for the
case and if they also do not request taxation for stenographer's
transcripts of the deposition. Plaintiffs cite FED. R. CIV. P.
30(b) and Herbst v. General Accident Ins. Co., Civ. No. 97-8085, 2000 U.S. Dist. LEXIS 11952, *5-6 (E.D. Pa. Aug. 21,
2000) for this assertion.
The Clerk of Courts denied this request as the expenses
incurred in videotaping depositions may not be taxed without
prior court approval. In support of her position, the Clerk of
Courts cited Local Rule (L.R.) 54.4. After a careful review, we
are in agreement with the Clerk of Courts.
The Middle District of Pennsylvania Rules of Court provide as
follows: "Fees for videotaped depositions may not be taxed
without prior court approval." L.R. 54.4(3). Plaintiffs have not
provided us any authority to the contrary. Rather, their position
is that the court did provide prior court approval by allowing
plaintiffs to present Dr. Horchos testimony via videotape.
Plaintiffs have provided no legal support for finding a nexus
between allowing a party to present videotape testimony and
granting a party approval for taxing the cost of a videotape
deposition. Logically, the two matters simply are not equivalent.
Accordingly, the plaintiffs' position is rejected.
In the alternative, the plaintiffs seek to recover the cost of
the written transcript of Dr. Horchos testimony, $115.20. The law
allows for the taxation of "fees of the court reporter for all or
any part of the stenographic transcript necessarily obtained for
use in the case." 28 U.S.C. § 1920(2). We will deny plaintiffs'
claim on this issue. Plaintiffs have not established that such a
transcript was necessary considering the fact that the witness's
testimony was presented to the jury via videotape and that the
stenographic transcript itself was never used.
2. Copying charges
Plaintiffs next appeal the Clerk's refusal to tax an additional
$425.80 for copying which they assert was necessary for their
case, regardless of whether the copies ultimately were admitted
into the case. The Clerk of Court denied these costs. The Clerk
pointed out that taxation of copying costs for exhibits attached to documents which are required to be filed and served
is permitted under L.R. 54.4(5). Expenses related to reproducing
motions and other routine case papers are not taxable. The Clerk
denied plaintiffs request because it did not sufficiently
describe the nature of the copies at issue.
Relying on Montgomery County v. Microvote Corp., Civ.A. No.
97-6331, 2004 U.S. Dist. LEXIS 8611, (E.D. Pa. May 13, 2004), the
plaintiffs assert that copying expenses are recoverable as
taxable costs when they are "necessarily obtained for use in the
case, whether or not offered into evidence at trial."
Montgomery, however, is a case from the Eastern District of
Pennsylvania. The Local Rules of the Middle District of
Pennsylvania provide that "[t]he cost of an exhibit necessarily
attached to a document (or made part of a deposition transcript)
required to be filed and served is taxable." L.R. 54.4(5).
Plaintiffs have listed the documents at issue in Exhibit G to
their appeal. Evidently, the description provided in Exhibit G is
the same description that was presented to the Clerk of Courts in
the request for taxation of costs. We are in agreement with the
Clerk of Courts that it is not possible from the descriptions
provided by the plaintiffs to determine if the photocopying at
issue is taxable. In fact, it appears that most of the copies at
issue are copies made to be sent to the client, to the vocational
expert or to opposing counsel during discovery. See Ex. G.
These are not documents "necessarily attached to a document (or
made part of a deposition transcript) required to be filed and
served." See L.R. 54.4(5). Accordingly, plaintiffs' appeal of
this issue will be denied.
Finally, plaintiffs seek taxation of $50.88 for enlargement of
a medical time line, which they argue is taxable because it was
helpful to a jury presentation. Once again, however, the Local
Rule is more stringent than the standard that the plaintiffs
would have us apply. The Local Rule provides that: "The cost of maps and charts are taxable if they are admitted into
evidence. The cost of photographs 8" by 10" in size or less, are
taxable if admitted into evidence, or attached to documents
required to be filed and served on opposing counsel. Enlargements
greater then [sic] 8" by 10" are not taxable." As the Clerk of
Courts has pointed out, the plaintiffs have been deficient in
describing the nature of the bill for enlarging trial exhibits
with any particularity. Therefore, the costs will not be taxed,
and the plaintiffs appeal will be denied.
For the foregoing reasons, the plaintiffs' appeal of the Clerk
of Courts' taxation of costs will be denied. An appropriate order
AND NOW, to wit, this 17th day of October 2005, the
plaintiffs' appeal of the Clerk of Courts' taxation of costs
(Doc. 61) is hereby DENIED.
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